I had a phone call today from a lady who recently suffered a miscarriage. She had been prescribed medication during her pregnancy which she believed caused the miscarriage. Without getting into the issue of whether the medication was the cause, I had to inform the mom of the very sad state of Texas law. Simply put, Texas medical malpractice laws do not protect the unborn. Since the Texas Supreme Court’s 1971 ruling in Yandell v. Delgado, a fetus is barred from asserting a claim for medical malpractice unless it is born alive. I know this seems to run contrary to much of what we hear and read about the rights of the unborn, but the Supreme Court has reaffirmed its position in Krishnan v. Sepulveda (1995), Edinburg Hosp. Auth. v. Trevino (1997) and Fort Worth Osteopathic Hosp. v. Reese (2004). The Supreme Court has held that the mother (but not the father) can recover for the loss of the fetus as a part of her body, but cannot recover mental anguish damages for the loss of the fetus as a separate individual. The Texas legislature in 2007 enacted Tex. Civ. Prac. & Rem. Code 71.003, creating a right to sue for the wrongful death of an unborn child. The catch is that the law does not apply to claims brought against doctors and hospitals. So parents can sue for the wrongful death of a fetus arising from a car crash, but not for egregious errors committed during delivery or prenatal care.
Archives for 2013
Texas Tort Claims Act
Prior to adoption of the Texas Tort Claims Act a governmental entity such as the state, county, city, hospital district, and school district enjoyed sovereign immunity and could not be sued. People who were injured by the negligence of government employees in the performance of their governmental functions could not recover for their injuries. In 1969 Texas adopted the Texas Tort Claims Act. This law waived sovereign immunity in certain situations. Under the Tort Claims Act a governmental unit is liable for personal injury or death caused by the negligence of an employee acting within the scope of his employment only if:
- the injury or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment and the employee would be personally liable under Texas law.
- the injury or death was caused by the condition or use of tangible personal or real property if the government, if it were a private person, would be liable.
School districts and junior college districts are not liable unless the injury or death arises from the use of a motor vehicle.
- A city bus runs a red light and causes an accident and injuries. The city will be liable because the injury arose from a city employee’s operation of a motor vehicle in the performance of his governmental function.
- A doctor at a county hospital negligently fails to diagnose and treat appendicitis which results in a child’s death. The county will not be liable because the death was not caused by the condition or use of property and did not arise from the use of motor driven equipment or a motor vehicle.
- A public school cafeteria employee negligently serves spoiled food which causes mass food poisoning. The school is not liable because the injuries did not arise from the use of a motor vehicle.
- A person visiting a Texas Department of Motor Vehicles office is injured by a dangerous condition on the premises which the DMV employees knew about but did not repair or warn people about. The state will be liable because the injury was caused by the condition of real property and the state would be liable if it were a private person.
Limits on damages
The Tort Claims Act limits the amount of money that a governmental unit may be liable for. The maximum amounts that a person may recover for personal injuries are as follows: $250,000 from the state and municipalities and $100,000 from a unit of local government such as a county or county hospital.
Notice must be given
A governmental unit is entitled to receive notice of a claim against it no later than six months after the incident giving rise to the claim. The notice must contain certain information about the claim and incident. Notice does not have to be given if the governmental unit has actual notice of the injury or death. This notice is in addition to the two-year statute of limitations that generally applies to personal injury and wrongful death claims in Texas.
A: Every state has certain time limits, called “statutes of limitations,” which govern the amount of time you have to file a personal injury lawsuit. In some states, you may have as little as one year to file a lawsuit arising out of an automobile accident. If you miss the deadline for filing your case, you may lose your legal right to damages for your injury. Consequently, it is important to talk with a lawyer as soon as you suffer or discover an injury.
There are a couple of seemingly innocent objects out there that you probably don t have a clue are dangerous, but that have caused people to get injured over and over. One causes fractures and the other causes lacerations. One is on the floor and the other one is mounted on a wall. So what do you think?
One is found in retail stores, office buildings, malls and all types of public facilities. The other is typically found in a restroom at a fast food place, gas station, apartment swimming pool or even at law offices.
When people get hurt in accidents involving these items, typically they are embarrassed and may think it’s their fault or was a freak accident. They usually don t know it’s an accident pattern that’s happened over and over. As an attorney who has practiced for 30 years, when I see patterns like this, I know I am only seeing a very small percentage of the total similar events.
So what do you think I’m talking about?
Next time you walk into a grocery store, retail outlet or office building keep an eye out for the floor mats. Many businesses use cheap, poorly maintained and worn-out floor mats. They flip up and bunch up and cause trip hazards. Most people who stumble or trip over these mats don t get hurt, the incident never gets documented or reported, and it’s an uneventful moment. However, there have been thousands of injuries and fractures caused by these mats. One case against a major national grocery store revealed hundreds of reported injury-causing mat claims in just one of their districts in a short period of time. Many lawyers don t take these cases because of the challenging case law involved in premises liability cases in Texas. But they can be successfully resolved with the right approach.
If you use one of these mats in your own business or where you work, try to get rid of it! There are many mats on the market that are well designed and don’t have the tripping tendencies of the cheap, poorly maintained, worn-out mats. When you walk into a store or business, keep a look out for a bunched up or flipped over mat so that you don t become another mat statistic!
So what do you think is in a restroom that goes around lacerating folks? How about a wall-mounted sink? We have had multiple cases in which sinks fall off the wall. They hit the concrete floor and basically explode. And when you go down with the sink, sometimes severe or even life-threatening lacerations may follow. So is this a freak accident? Is it your fault because you were leaning or putting pressure on the sink? Nope.
In all likelihood, the sink wasn t installed correctly. Wall-mounted sinks typically rest on a bracket. The bracket gets stressed over time and starts to give, and at some point in time the sink can pop off the bracket and crash to the ground. These sinks are designed with mounting bolt holes on the underside of the sink to provide additional support. Problem is, in the initial installation of the sinks that fail, the mounting support bolts haven’t been utilized. So, don t put pressure on wall-mounted sinks. And if you have one in your business, take a look underneath and see if the support bolts were utilized to keep the sink from falling off the bracket.
If you hear about one of these events happening, give us a call. And keep an eye out so you are not a victim. If you see a bad mat or a poorly designed sink installation, bring it to the appropriate person’s attention to prevent someone else’s emergency room trip.
Bailey & Galyen’s new Fort Worth Office is open for business on June 1st. The office is located just South of I-30, at 1300 Summit Avenue, in the Frost Bank Building of The Summit Office Park. Not only are our attorneys some of the top litigators in the state of Texas, with extensive trial experience and an impressive record of success , but at Bailey & Galyen, many of our attorneys are board certified by the Texas Board of Legal Specialization in the following practice areas: Personal Injury Law, Family Law, Criminal Trial Law, Appellate & Civil Law. That means our clients are being represented by attorneys who have demonstrated special competence in their area of specialization. Furthermore, a board-certified attorney must also have extensive knowledge of the laws of evidence, procedure, and substantive law. We are proud of the fact that we offer the specialized talent of board-certified attorneys to our clients.
The following important and revealing article is provided as written from the Mass Device website (http://www.massdevice.com/), which provides its subscribers with “News and information for the medical device industry and the companies that drive it.”
April 25, 2013
A pair of Harvard Medical School physicians weighs in on the medical device tax in the New England Journal of Medicine, casting doubt on opponents’ arguments and saying it shouldn’t be repealed.
A pair of Harvard Medical School physicians say the medical device tax should not be repealed, writing in the New England Journal of Medicine yesterday that it’s an important bulwark of the healthcare reform law.
In an op-ed piece for the medical journal, the doctors say the arguments for repealing the tax that it will drive medtech investment offshore, cost American jobs and stifle innovation are largely without merit. And even if some of those arguments prove valid, Kramer and Kesselheim argue, the benefits of healthcare reform far outweigh any damage from the tax.
“Losing the revenue that would have been provided by the medical device excise tax would not by itself cause the [Affordable Care Act] to crumble, but it would send a powerful signal to other groups and their lobbyists about the law’s vulnerability to piecemeal erosion. Resolving the conflict over the device tax, then, may either strengthen the ACA and its laudable push toward universal health care or weaken both before progress really begins,” write Drs. Daniel Kramer and Aaron Kesselheim, whose disclosure forms reveal grants from the FDA’s Center for Devices & Radiological Health, The Robert Wood Johnson Foundation, the the Agency for Healthcare Research and Quality, the Pew Charitable Trusts and the Harvard Catalyst Clinical & Translational Science Center.
Kramer and Kesselheim argue that the $2 billion to $3 billion in annual revenue from the 2.3% levy on U.S. sales of medical devices is an important part of the funding for the healthcare reform law, estimated at $100 billion annually also the annual sales estimate for the device industry cited by the authors. Dire predictions from the industry about the effects of the tax, especially claims by national lobby AdvaMed, about its impact on medtech employment, small- to mid-size companies and innovation, are unproven, they write.
“Although some of these claims may prove valid, predictions regarding the tax’s harmful effects on the device industry rest on several unproven assumptions. Decisions regarding layoffs are difficult to trace to single policy changes. With regard to off-shoring, it is unclear how the tax would provide an incentive to move production abroad, since it applies to domestic sales irrespective of the site of manufacture. And since international sales remain unaffected by the tax, the competitiveness of U.S. companies abroad should not be impeded,” Kramer and Kesselheim write. “In addition, individual companies’ profits may be preserved by shifting costs to consumers, a tactic that will be aided by the expansion of insurance to millions of new patients.
“The argument that the excise tax would harm innovation is perhaps the most difficult to prove or debunk, because the relationship between profits and innovation is not straightforward. Certainly, a company’s revenue funds its research and development, but there is no evidence that a tax would affect these investments,” they write.
THE BAILEY & GALYEN LAW FRIM EXTENDS ITS CONDOLENCES TO THE VICTIMS, THEIR FAMILIES AND THE COMMUNITIES AFFECTED BY THE TRAGIC FIRE AND EXPLOSION AT THE WEST FERTILIZER COMPANY PLANT. WE EXTEND AN OFFER FOR A FREE CONSULTATION TO DISCUSS YOUR LEGAL RIGHTS.
Two people have died and many others have been hospitalized in a severe accident involving a bus and another car on highway 161 and Belt Line Rd. in Carrollton, TX. The charter bus, which was on its way to the Choctaw Casino in Durant, OK, hit the highway barrier and flipped over.
It is being reported that several of the injuries are severe and one passenger is undergoing surgery for internal injuries. Eleven people have been transported to Parkland Hospital and eleven others to Baylor Medial Center and are being treated for severe injures. Other passengers on the bus are being treated for minor injuries as well. Many of the 35 to 40 passengers on the bus were tossed throughout the vehicle during the crash. The teenage driver of the other car involved is in stable condition at John Peter Smith Hospital.
The personal injury attorneys at Bailey & Galyen are experienced in handling cases involving public transportation accidents. We will investigate every aspect of the accident to determine who’s at fault and if negligence on the part of the driver or bus company led to the crash. If you or a loved one has been seriously injured or wrongfully killed in a public transportation accident, please email or call the personal injury attorneys at Bailey and Galyen at 1-800-218-6178 to discuss the details of your case. You may be entitled to compensation for injuries, lost wages or pain and suffering due to the loss of a family member.
FDA stands for Food and Drug Administration. While most Americans view the FDA as the country’s drug enforcement arm, it does so much more and its responsibilities are wide and varied. It deals with human and animal food, drugs, medical devices, radiation emitting devices, vaccines, blood and biologics, cosmetics, and tobacco. The majority of what the FDA does do is not what we think it spends its time on.
The FDA reported that for the first 3 months of 2013, it has recalled 46 human food products. That is 3 times the number of animal & veterinary food products it recalled and 4+ times more than the drugs it has recalled. Further, it is 23 times higher than the medical devices it has recalled.
FDA RECALLS AND WITHDRAWALS January 1, 2003 – March 26, 2013
02 MEDICAL DEVICES
0 RADIATION-EMITTING PRODUCTS
0 BLOOD & BIOLOGICS
14 ANIMAL & VETERINARY
Clearly, each of these responsibilities it important for human health and safety, save and except the animal & veterinary arm. It is amazing that the FDA has to devote so much time, energy and resources to making sure our food supply is safe, not to mention the number of recalls it has to initiate to keep it that way. By simple extrapolation, it could be expected that by the end of 2013, the FDA will have recalled 184 food products, 40 drugs, 8 medical devices and 56 animal & veterinary products. No one should believe that this means that drugs are safer than food. Rest assured that they are not. Remember that all drugs have side effects. The FDA gets involved when it receives information that a particular drug is causing side effects not disclosed to the FDA in the approval or post-approval process, or when the reports of know side effects are more than represented by the drug’s manufacturer.
Let’s put this into perspective:
1. The FDA issued 10 recalls and withdrawals in the first 3 months of 2013.
2. The FDA issued 13 safety alerts for human medical products and 12 for medical devices for that same period.
3. The FDA has taken some action 35 times in 2013 on drugs and/or devices. That is only 5 actions less than it took on food products.
4. The FDA likely watches a hundred thousand more food products than drugs and devices.
5. The numbers of recalls, withdrawals and safety alerts on drugs and devices is far greater than any other action the FDA takes on it other areas of responsibility.
The importance of each of the FDA’s functions cannot be overstated in its responsibility for protecting and advancing public health.
It is commonly known that when the Texas Legislature is in session, no one is safe. Texas 83rd legislative session is well underway, and that saying is as true as ever. The legislature is taking aim at Texans through laws it hopes to pass that attack insurance policyholders rights. That’s right, attacking the policyholders who pay the premiums and protecting the insurance companies that delay and deny claims and force Texans to hire trial lawyers to get their claims paid. Further, it is not just one or two laws it wants to pass. As of the day before the March 8, 2013, deadline to file bills, over 400 insurance bills had been filed in the Texas Legislature. Rest assured that none of them are consumer friendly. Here are some low-lights and an explanation why they hurt Texans:
1. One of the laws the legislators want to pass will prohibit recovery of non-economic and punitive damages by uninsured drivers except in very limited circumstances. The Texas legislature previously succeeded in capping non-economic damages in medical malpractice cases, and has capped punitive damages in all cases. Non-economic damages are compensation for an innocent victim’s pain and suffering. Texas laws should never punish innocent victims of someone else’s negligence and gross negligence by denying them compensation for their pain and suffering and capping punitive damages. It should punish the wrongdoer who caused the damages, injuries and losses with uncapped punitive damages.
This bill would prohibit the recovery of non-economic (pain and suffering) damages and punitive (to punish and deter similar, future conduct) damages by someone who for whatever reason is driving without insurance when they did absolutely nothing to cause the collision or their injuries. Texas should be fully able to hold wrongdoers responsible and Texas legislators should strive to preserve innocent victims access to the courts and rights to be compensated. If the innocent victims were negligent and caused some or all of their own damages, Texas law already provides a remedy by which the jury and judge can proportionately reduce any such award. If the party seeking compensation’s comparative or contributory fault the equals or is greater than 50%, that person will not be compensated.
All Texas drives should follow the law and have auto liability insurance. Many do not, mostly for economic reasons. Their inability to afford auto insurance should not be used to deny them just compensation when they are injured through no fault of their own in the incident.
2. One of the laws the legislators want to pass will eliminate post-judgment interest on judgments involving Medicare, including when the defendant appeals. Texas legislators want to be paid interest on their campaign accounts, their personal accounts and their investments. They do not, however, want innocent victims to receive interest on the money they are entitled to for the 2 4+ years it takes to get the case to trial and through the inevitable appellate process.
Post judgment interest is important to behoove those found by the court and/or jury to be at fault from delaying and denying the compensation to which innocent victims that the judicial system has said they are entitled. Post judgment interest and prejudgment interest are important check and balances to keep and protect innocent victims right to be compensated after a trial by jury or judge.
If passed, this bill will protect those that need prosecution (the insurance companies) and not those who need protection (the innocent victims).
3. One of the laws the legislators want to pass will allow EMS providers to receive direct access to policyholder’s PIP and MedPay. The medical profession can make applications for patients PIP (Personal Injury Protection) and MedPay. It should not be mandatory, however. The legislature recently passed a law that punishes innocent victims when they pay their medical bills prior to the resolution of their case. Texas Civil Practice & Remedies Code 41.0105, limits the recovery of medical expenses to the amount actually paid or incurred. The exact language of the statute is as follows:
In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant. (Emphasis added.)
By codifying medical professionals ability to make PIP and MedPay applications, innocent victims lose the ability to preserve the value of their personal injury claim. Understand that if the medical professional makes the PIP and MedPay application and received the money, that bill (or portion thereof) is paid, and cannot be used to determine the value of a claim for personal injuries and pain and suffering. If this practice is not mandatory, then the innocent victim can choose not to pay the medical professional until the case is resolved, thereby preserving the dollar amount of medical care incurred. The higher the amount of the incurred medical bills is, the higher the potential value of the case. Conversely, the more of that medical that is paid, the less left unpaid for determining the potential value of the case, and the lower that value will be.
This is nothing more than another assault on innocent victims that they will not even know about until it is too late.
The innocent victim would be better served and protected legislation that requires that all Texas Auto Insurance policies have PIP (Personal Injury Protection) and/or MedPay. This is extremely affordable coverage and goes a long way to helping innocent victims receive the medical care and lost wages they need. Legislation should also require underinsured and uninsured coverage for those times when the injuries and damages suffered are greater that the coverage available and when the wrongdoer does not have insurance. The legislature should focus on protecting all innocent victims of someone else’s negligence and gross negligence, not special interests.
4. One of the laws the legislators want to pass will create a mandatory Appraisal process requiring appraisal for most insurance disputes on amount of accepted coverage in homeowner policies. Standard operating procedure for insurance companies and especially with regard to homeowner’s policies – is to delay and deny paying claims. Passage of this law would legalize and endorse that standard operating procedure. Requiring an appraisal process for most insurance disputes for a claim on homeowners policies will increase costs of the innocent victim and further delay their receiving just compensation. This bill does nothing to help the insured paying the premiums or the innocent victims of the insured’s negligence or gross negligence. We have procedures in place to verify claims before as well as after a lawsuit is filed for damages or injuries that would be covered by any kind of insurance policy. These procedures involve both the insurance companies and the innocent victims using experts, and a mediator, judge or jury making decisions if the parties cannot reach agreement. This appraisal will do nothing do preserve innocent victims rights and access to the courthouse to redress wrongs.
5. One of the laws the legislators want to pass will eliminate existing remedies and policyholder protections for unfair insurance practices and prompt payment violations.
This bill would remove the insured’s right to bring suit against their own insurance company for not paying THEIR own claim on THEIR insurance policy when the insurance company does not timely and fairly pay your claim. Unfair insurance practices and prompt payment violation provisions exist to regulate trade practices in the business of insurance by defining, or providing for the determination of, all such practices in this state which constitute unfair methods of competition or unfair or deceptive acts or practices and by prohibiting the trade practices so defined or determined. The current statutory provision can be found in the Texas Insurance Code Chapter 542, Subchapter A is entitled, Unfair Claim Settlement Practices has the same purpose of preventing unfair claim settlement practices. Again, if passed, this bill will protect those that need prosecution (the insurance companies) and not those who need protection (the innocent victims).
6. One of the laws the legislators want to pass will allow insurers to cancel policies after a reduced number of claims, including claims caused by natural causes. Insurance companies do not like paying claims. This bill would allow the insurance companies to accept Texans premiums and then cancel the policies when a claim is made that the insurance company thinks amounts to too many by the insured. This bill protects the insurance companies who already have all of the power and money. An insurance policy is a contract, and this law will simply give the insurance companies another out in your time of need. After a devastating loss, you will find a cancellation notice in the mailbox. Then when you try to bring a lawsuit against the insurance company for bad faith, that right will have been eliminated by the bill discussed above.
7. One of the laws the legislators want to pass will subject disputed claims to the appraisal process with severe limits on attorney fees. Every time the legislature has passed any tort reform measure it has made it more difficult for Texans to hold wrongdoer accountable. In medical malpractice law reform, for example, the legislature put caps on non-economic and punitive damages and severely restrict the ability to hold emergency room facilities and staff responsible for the injuries and death caused by their medical errors. Since trial lawyers who handle these cases only get paid if there is a recovery, when the case costs more to develop that the expected recovery, the case becomes non-economical. That means that the lawyers’ share of the reduced recover does not justify the lawyer’s six-figure investment in the case. It follows then, that if the legislature reduces attorneys fees on cases no matter how they do it it will reduce the innocent victims™ ability to hire a lawyer to hold wrongdoers accountable. Limiting attorneys fees on any kind of cases is not in the innocent victims’ best interest and only serves the special interests who want to run lawyers out of business. Rest assured that there is no do-it-yourself guide to handing your own personal injury or business litigation case. You need a lawyer.
8. One of the laws the legislators want to pass will remove adjusters employed by an insurer or agent from regulation (licensing, examination, continuing education, and enforcement related requirements). This is stupid. Why would we remove examination, licensing, continuing education and enforcement related requirements for any professionals. Is the legislature going to next remove these requirements for lawyers and doctors? Would you go to a lawyer or doctor who did not have to take and examination to prove his knowledge and worthiness, get licensed to show he has met the minimum requirements to hold himself out as a professional in that field, take continuing education to keep up on all of the latest developments in that field, and be subject to enforcement related requirements to make sure the professional always abides by the rules and standards that guide that profession? No one would, and the legislature should not pass insurance-favored legislation that prejudices their insureds.
9. One of the laws the legislators want to pass will abolish Office of Public Insurance Counsel.
Why would the legislature do this? The answer is found in the Mission Statement of the Office of Public Insurance Counsel:
The mission of the Office of Public Insurance Counsel (OPIC) is to represent the interests of consumers in insurance matters. This means promoting public understanding of insurance issues, advocating fairness and stability in insurance rates and coverage, working to make the overall insurance market more responsive to consumers, and striving to ensure consumers receive the services they have purchased. (Emphasis added.)
OPIC represents consumers! OPIC advocates for Texas insurance consumers primarily before the Texas Department of Insurance (TDI). OPIC is an irritant to The Texas Department of Insurance and the legislators pushing its agenda regarding self serving rate increases, rules, and forms. These issues affect Texans’ property and casualty, life, accident, and health insurance coverage and rates.
If the Texas Department of Insurance can eliminate OPIC, it eliminates much of the opposition to its agenda.
10. One of the laws the legislators want to pass will give insurers ability to require claims be made within one year.
Texas already has laws that state the length of time one has to make a claim by filing a lawsuit. It is called the Statute of Limitations. For Bad Faith claims, there is a 2 year statute of limitations, and for Breach of Contract the statute of limitation is 4 years. The legislature wants to reduce the time allowed to file all claims against an insurer to 1 year to reduce the number of claims made against it and the amount of money the insurance companies have to pay out on claims. This is a very anti-consumer bill that, again, protects the insurance companies and not the innocent victims and consumers.
Do not let your elected Texas Senator and Representative pass laws that restrict your right and ability to hold wrongdoers accountable and be compensated by insurance. We Texans who have insurance do so to protect ourselves in the event we are injured or damaged through no fault of our own, or if we injure or damage another person. If you do not speak up, these new laws will injured and damage you through your own fault. You may have elected these folks to the legislature because of their party affiliation, but understand that the debt they owe to special interests is adverse to and far outweighs your interests and what benefits and protects you.